The appellate division issued a decision last week which provides a concise summary of the various issues confronted by a zoning board of appeals in deciding area variances. In Matter of Millennium Custom Homes v. Young, the court upheld the zoning board of appeals noting that the decision was rational and supported by evidence in the record.

After reviewing the balancing test in the statute, the court found there was detailed evidence of the adverse impacts on the neighborhood. The court also noted that the board adequately distinguished this application from other similar cases.

The case is a good primer on the various rules applying to review of zoning board decisions. We believe it is particularly astute as it cites two cases successfully argued by Steven Silverberg of this firm, Matter of Fuhst v Foley 45 NY2d 441 and Matter of Byron Assoc. v. Zoning Bd. of Appeals of Town of Mamaroneck, 142 AD2d 643, for rules applying to review of ZBA decisions which supported the zoning board of appeals in this case.

The appellate division dismissed a challenge to the continuation of a condition to a variance on the grounds that the challenge is barred by the doctrine of res judicata. In Matter of Calapai v. Zoning Board of Appeals of the Village of Babylon, the court held that a variance conditioned upon the removal of the building modifications in the event of a change of circumstances was a condition which could have been challenged when the variance was granted in 2000. Therefore, this challenge to a 2007 renewal of the variance, on grounds that could have been raised in 2000, is barred.

The petitioner applied to convert a garage to living space for her disabled son in 2000. The variance was conditioned upon the requirement that the modifications to the structure be removed upon a change of circumstances and at such time that the structure also be restored to a garage use. The petitioner’s son died and in 2006 petitioner applied for a one year extension of time to convert the structure. In 2007, she applied to delete the condition. Instead the zoning board granted a three year extension with the right to renew every three years and further provided that if the property is sold that the garage would be restored.

Petitioner brought this Article 78 proceeding challenging the condition. The court held that administrative res judicata applied finding that: the issues raised on the variance application that is the subject of this appeal were raised in the petitioner’s initial 2000 application to make alterations to her garage, and the change of circumstances that occurred, to wit, the death of petitioner’s son, cannot be viewed as unanticipated.”

The interesting aspect of this decision is not the application of the doctrine of res jusdicata to a zoning board determination. Rather, of interest is that the court did not mention it has held, as recently as June of 2008, that variances tied to a particular user are generally void. In the case Matter of Fowlkes v Zoning Board of Appeals of the Town of North Hempstead, 53 AD3d 711 (2d Dept. 2008) the same court held: “any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it….” Yet, this new decision, involving a variance related solely to the ownership by this petitioner, makes no mention of such any impediment to the underlying variance.